Court Upholds Contribution-Based Sharing of Matrimonial Property

The Court of Appeal has upheld a law requiring matrimonial property to be divided based on each spouse’s contribution rather than automatic equal sharing after divorce.

In its ruling, the appellate court dismissed a petition by the Federation of Women Lawyers (FIDA-Kenya), which had sought to have Section 7 of the Matrimonial Property Act declared unconstitutional. FIDA argued that the section discriminates against women and contradicts Article 45(3) of the Constitution, which guarantees equality in marriage.

The women’s rights group maintained that many women make significant non-monetary contributions—such as domestic work, childcare, and emotional support—that are often difficult to quantify, and therefore, the law disadvantages them.

However, the Attorney General defended the section, saying it was constitutional and already recognises both monetary and non-monetary contributions, ensuring fairness and protecting all spouses’ rights.

A three-judge bench upheld the earlier High Court ruling by Justice Mativo, finding Section 7 consistent with the Constitution. The judges held that each spouse is entitled to a fair share of property based on proven contribution—direct or indirect.

“Section 7 of the Matrimonial Property Act neither violated nor contradicted Article 45(3) of the Constitution,” the court ruled.

The judges clarified that contributions may include domestic chores, child-rearing, and moral support, provided they are proven through evidence presented in court.

The decision aligns with a 2023 Supreme Court judgment which stated that equality in marriage does not translate to an automatic 50/50 division of property upon dissolution but rather equality in rights and responsibilities during the union.